Was ​“Justified” Force Also ​“Necessary”?

A second look at the exoneration of a cop in the use of force against a troubled man has raised a question: Whether New Haven is out of step with new statewide standards for police accountability.

The debate centers on whether departments should consider only whether cops’ use of force is ​“justified,” or whether it should also be deemed ​“necessary” in light of other alternatives.

The second look concerns a controversial Jan. 29 arrest that took place in the lobby of the Connecticut Financial Center on Church Street.

Newly released documents from the police department and the Civilian Review Board — as well as recent interviews with the mayor, police chief, and a state criminal justice reform expert — shine a light on how the debate in this case mirrors a statewide shift in policy, training, and expectations around police use of force.

The CRB is calling on the police chief to take a second look at an Internal Affairs investigation’s exoneration of the actions of the officer in the case, and at the department’s attitude toward when it’s OK to punch citizens and grab them by the neck.

The case began as a commercial eviction dispute between the office tower’s management and a tenant named Shawn Marshall, to which police were called. It escalated into a scrum on the lobby floor during which Marshall kicked Officer Justin Cole. Cole responded by grabbing Marshall by the neck, punching him three times in the head, and pepper spraying him. 

Until now, attention has focused most on the punches thrown. Newly released information shifts the debate somewhat to Cole’s decision to grab Marshall by the neck; he changed his story about that action in the course of an investigation into the incident. 

On Sept. 10, the police department’s Internal Affairs (IA) division concluded a seven-month investigation by finding that Cole and fellow responding Officer Ashley McKernan and then-Officer In Training David DeRubeis used a ​“lawful, justified, and proper” level of force when arresting Marshall. (McKernan intervened during the incident to stop Cole from attacking Marshall further.)

But was Cole’s use of force the best or most appropriate police response, even if it was legally permissible? Was it ​“necessary”?

In reflecting on this case and on what it reveals about police use of force, Civilian Review Board chair Rev. Samuel T. Ross-Lee said during a late September meeting that the all-civilian police review board ought to ​“look at not just what’s allowed, but if what’s allowed should be allowed.”

Why Fellow Cop Intervened

“Police officers must use only the minimum level of force necessary to achieve a lawful purpose,” reads an updated state use of force policy that the state Police Officer Standards and Training Council (POST) adopted in November 2020, and which goes into effect statewide on Jan. 1, 2022. ​“Any use of force must be reasonable, proportionate to the threat, and employed in a manner consistent with this policy.”

Current New Haven use of force policy, which was adopted in 2018 and which Interim Police Chief Renee Dominguez said will be updated in January to correspond with the new statewide policy, already sounds remarkably similar in parts to the new state rule. ​“In compliance with applicable law, officers shall use only the amount of force necessary and reasonable to control a situation, effect an arrest, overcome resistance to arrest, or defend themselves or others from harm,” that local policy reads.

And yet, the 56-page IA report — which the Independent obtained via a Freedom of Information Act request — concludes that Cole did nothing wrong when arresting Marshall not because his use of force was ​“necessary,” but rather because it was ​“reasonable and not excessive” (in the words of a use of force instructor) and it was ​“lawful, justified, and proper” (in the words of the lead IA investigator).

The only person quoted in the IA report as questioning whether or not Cole’s use of force was ​“necessary” was Cole’s fellow officer, Ashley McKernan.

McKernan actually intervened during the incident to stop her colleague from continuing to use force.

When asked by IA investigator Kealyn Nivakoff why she told Cole to ​“stop” as he held Marshall’s throat and punched him in the head, McKernan replied that her response to intervene was a ​“gut, knee jerk reaction. It wasn’t necessarily something that was calculated. It was just I had seen him using his level of force, and I felt it wasn’t necessary at that time. That’s all I can personally remember thinking at that split moment, we don’t need to be doing that, and that’s why I said stop.”

Lawlor: ​“The Goal Is To Change The Mindset”

While declining to comment on the specifics of the Cole-Marshall case, New Haven Board of Police Commissioners member Michael Lawlor emphasized that the state standards around police use of force indeed moved away from ​“justified” and towards ​“necessary.”

Lawlor has followed and helped steer the statewide debate over policing for decades. A former state prosecutor, he served as co-chair of the state legislature’s Judiciary Committee, a state undersecretary for criminal justice policy and planning, and now an associate professor who teaches about criminal justice at the University of New Haven.

“What is very clear is that the new state use of force policy focuses on necessary force,” he told the Independent. ​“In other words, officers are to use only the force necessary to, for example, take someone into custody.”

Lawlor has a front-seat view on how that policy will be rolled out in the coming months and years, as he is a POST Council member who is also a member of POST’S Curriculum Subcommittee. He plays a role in coming up with how use of force instructors from across the state will be taught about this new use of force policy.

“The curriculum is being designed to emphasize that the policy has to be ​‘necessary’ as opposed to simply ​‘justified,’” he said.

If force is not justified, then it’s a crime, and a police officer could be arrested for such conduct.

The real question is what is ​“necessary” — which, he said, would mean the difference between getting arrested and getting disciplined or admonished.

The updated state use of force policy defines ​“necessary” use of force as ​“an action chosen when, in an officer’s judgment, no effective alternative exists.”

Anecdotally, Lawlor said, some police officers think that, if an action is justified, ​“I can just do it.”

“The goal is to change this mindset,” he said.

Thus the emphasis in the state policy and POST curriculum on the distinction between ​“necessary” and ​“justified” use of force standards.

“This distinction is really important because, when ordinary citizens see that [force] was justified, I think it’s a reasonable thing for people to think, ​‘You’re saying it was OK,’” Lawlor said. ​“No. It’s justified under the criminal law. It doesn’t mean it was ok.”

He said his goal as one of the people helping craft POST’s curriculum for the new use of force policy is ​“prevention. What can we do so in the future, we’re not confronted with these situation where” the use of force is legally justified — but more than what’s necessary to achieve the desired result.

Cole Changes Story About ​“Immense Struggle”

Then-Police Chief Otoniel Reyes ordered back on Feb. 3 that IA investigate the officers’ use of force when arresting Marshall. The investigation formally concluded on Sept. 10.

The IA report includes a wealth of details on what happened in the runup to, during, and after the police officers’ arrest of Marshall at the Connecticut Financial Center earlier this year. Click here to read the full report.

Some of the most revealing parts, when it comes to evaluating Cole’s use of force against Marshall, come during sections describing separate interviews with Cole, McKernan, and city use of force instructor Officer Robert Hwang.

Nivakoff first interviewed Cole about the case at police headquarters at 1 Union Ave. on May 26.

She asked Cole to describe the actions that led up to his use of force in the lobby. Cole described moving in with DeRubeis to handcuff Marshall after an hour-plus of frustrating conversation during which Marshall repeatedly refused to leave the building.

Marshall then ​“violently kicked Cole in the front of his body causing him to fall several feet backwards” and causing his body camera to fall off.

After Marshall had kicked Cole and before Cole punched Marshall, Cole described hearing Marshall ​“making a spitting sound.” He said he put his left hand up in ​“that area” in response to the spitting sound.

Then, Nivakoff wrote:

I asked Cole if he remembered grabbing Marshall at any point. Officer Cole stated that yes, he did. Officer Cole stated he put his hand up near Marshall’s upper shoulder area and face and put his hand down near Marshall’s shoulders. Officer Cole then struck Marshall three times in the head. I advised Officer Cole that it appeared that he placed his left hand around Marshall’s neck before striking him three times. Officer Cole stated that he didn’t recall placing his hand around Marshall’s neck, but believes it was near his upper chest, shoulder, and head area. Officer Cole stated he struck Marshall with a closed fist. I asked Officer Cole what his intent was in utilizing this force. Officer Cole stated it was to gain control of Marshall and this was after Marshall had already assaulted Officer Cole, refused to be handcuffed, and his hands remained clenched to his chest. I asked Officer Cole if this particular force was effective, and he stated it was not. I asked Officer Cole if he recalled Officer McKernan placing her hands on his arm and chest and stated ​‘woah’ several times. Officer Cole stated he did not recall Officer McKernan doing this.

Cole also told Nivakoff that the level of force he used was due to the level of force that Officer McKernan in particular did not use. ​“Officer McKernan was doing nothing,” he told the city investigator. ​“So I felt like at that time I was in this altercation by myself.”

On Aug. 3, Nivakoff interviewed Cole again about the incident. The focus of this second interview was on Cole’s explanation of where he had put his hand on Marshall’s body.

Back in May, Cole had told Nivakoff he put his hand near Marshall’s face and shoulder area. ​“Body worn camera footage depicts a different perspective,” Nivakoff wrote.

Cole changed his explanation, and told the investigator why he put his hand on Marshall’s neck:

During the struggle and prior to striking Marshall, and in order to gain control and compliance from Marshall, Officer Cole stated he placed his hand near the lower area of Marshall’s neck. Officer Cole stated he didn’t place it anywhere else on his neck, and he did not restrict Marshall’s airway. Officer Cole stated his intention in placing his hand on Marshall’s neck area was after Officer Cole heard a spitting noise, because Marshall continued to struggle, and it was to gain control of him.

Cole also told Nivakoff that ​“he didn’t recall placing his hand around his neck because he had no intention of putting his hand on his windpipe or restrict any intake of air, and that he was just simply trying to reach to that area to gain his compliance. …

“Officer Cole stated it was a long and stressful event, so he couldn’t recall specifics of the ​‘immense struggle’ when trying to recount the totality of the incident during his initial interview.”

McKernan: Cole’s Level Of Force ​“Wasn’t Necessary”

During her June 18 interview with Nivakoff, McKernan offered a different take on Cole’s actions during the arrest.

McKernan said she was not sure if she agreed with Cole’s decision to arrest Marshall, because ​“she looked at the incident as an emotionally disturbed incident, and that she didn’t know if it should be handled criminally.”

She repeated that she didn’t feel that Marshall’s arrest was ​“necessary” prior to the struggle in the lobby. After Marshall kicked Cole, however, she did feel an arrest was necessary.

“Officer McKernan stated she felt the police’s presence at the call was the catalyst behind Marshall’s escalated behavior,” Nivakoff wrote. ​“Officer McKernan stated she felt it would have been appropriate to leave Marshall in the lobby of the building prior to his behavior escalating and if she was the primary officer taking the complaint, she would have. Officer McKernan reiterated that she saw this incident as an individual with a mental health issue.”

When asked to explain why she reached out to Cole and told him to ​“stop” as he held Marshall’s throat and punched him in the head, McKernan said she thought that the level of force Cole was using at that point ​“wasn’t necessary.”

I asked Officer McKernan what specific force utilized by Officer Cole was unnecessary in her opinion. Officer McKernan stated the placement of Officer Cole’s hand on Marshall’s neck. I asked Officer McKernan what force she thinks should have been utilized to get Marshall to comply. Officer McKernan stated that she thinks more officers should have been requested. I asked Officer McKernan if she called for more units. She stated she did not. … I asked Officer McKernan if she thought there was anything else unnecessary aside from Officer Cole’s placement of his hand on Marshall’s neck. Officer McKernan stated no, but when Officer Cole performed this maneuver, she began to question Officer Cole’s judgment.

Nivakoff later asked McKernan if she brought her concerns about Cole’s use of force to a supervisor, or if she documented it in a report. She said she didn’t remember if she spoke to a supervisor or not, and that she did not document her concerns in a supplemental report.

Why not? ​“Probably because at the time I was very unsure of myself and I was very unsure of what happened on the call,” McKernan is quoted as saying. ​“A lot had happened. It was a lot for me to take in.”

Use Of Force Instructor: ​“Reasonable & Not Excessive”

And on Aug. 4, Nivakoff interviewed Hwang, who has worked as a use of force instruction with the NHPD for the past five years.

Asked to evaluate Cole’s placement of his hand on Marshall’s neck:

Officer Hwang described this maneuver as an attempt to gain compliance. Officer Hwang stated it was not a choke hold and elaborated that if Officer Cole’s intention was a choke hold, it could render Marshall unconscious and Officer Cole would not have removed his hand from Marshall’s neck. Officer Hwang described the length of time that Officer Cole held his hand on Marshall’s neck as less than 1 second. I advised Officer Hwang that during Officer Cole’s statement with Internal Affairs, he stated his intention in placing his hand on Marshall’s neck was to gain control of him. I asked Officer Hwang if this was a trained technique. Officer Hwang stated it was not a trained technique, but that NHPD officers are taught that if you control the head of a combatant, you control the body. Officer Hwang stated he believes Officer Cole was trying to control Marshall’s head and restrain him. Officer Hwang also indicated that the use of an untrained technique does not designate the technique as unreasonable. Officer Hwang stated that when Officer Cole Struck Marshall in the head (three times), it was effective in gaining compliance overall.

Hwang told Nivakoff that, after reviewing the entire incident, he found the use of force utilized by Cole, DeRubeis, and McKernan to be ​“reasonable and not excessive.”

In the conclusion of the IA report, signed Sept. 9, Nivakoff wrote that her investigation ​“determined by a preponderance of the evidence that the alleged act did occur, but the officers engaged in no misconduct because the act was lawful, justified, and proper. Therefore, the investigation into Officer Cole, Officer McKernan, and Officer DeRubeis was determined to be EXONERATED.”

CRB Subcommittee: Reprimand Cole; De-Escalation Refresher Needed

The city’s Civilian Review Board discussed the Cole-Marshall case during its Sept. 27 regular full board meeting, and then again during a ​“case investigation” subcommittee meeting last week.

On Friday afternoon, CRB member Steve Hamm sent an email copy of a list of recommendations that the subcommittee had drafted. Members of that subcommittee include fellow CRB members Iva Johnson, Jewu Richardson, and John Pescatore.

The four-paragraph memo recommended a handful of actions to be taken by the full CRB, the police chief, and the Board of Police Commissioners. Those recommendations include:

• That Officer Cole be ​“reprimanded or cautioned for failing to de-escalate in the runup to the arrest and failing to make the arrest in a way that would not result in violence. He should be cautioned that choking is not permitted. He should get fresher training in de-escalation.”

• That city police officers be trained to recognize when people feel ​“singled out and treated poorly because of their race, and respond appropriately.”

• That the police chief and the Board of Police Commissioners ​“remove punches to the head from the list of permitted uses of force.”

• That all city police officers be ​“cautioned to be on the lookout for emotional-response issues and to respond appropriately. Perhaps all officers need to be retrained in dealing with this kind of situation. Also, other officers on the scene should feel empowered to counsel an officer who is behaving inappropriately to change her or his approach, or to ask that officer to step back from the situation.”

The CRB subcommittee members noted that the city’s so-called community crisis response team — which proposes to send social workers and mental health professionals instead of armed police officers to certain 911 calls — may have been able to resolve this case, if it had existed at the time. (Click here for a recent story about how that 911 plan is still in the planning stages.)

During the CRB’s Sept. 27 public discussion of the Cole case, well before the subcommittee issued its recommendations last week, CRB Chair Samuel T. Ross-Lee gestured towards the ​“necessary” vs. ​“justified” use of force debate when he said, ​“I think this board has the responsibility to look at not just what’s allowed, but if what’s allowed should be allowed.” Just because a response is legally permissible doesn’t mean it was the right thing for the officer to do, he argued.

Chief, Mayor: ​“Necessary” Is The Way To Go; De-Escalation, Duty-To-Intervene Training Underway

During separate interviews on Monday, Chief Renee Dominguez and Mayor Justin Elicker both commended the IA investigation as ​“extensive and intensive” (in Elicker’s words) and ​“lengthy and thorough” (in Dominguez’s words).

Dominguez said the findings of the investigation were ​“appropriate.” Asked whether or not he agreed with the investigation’s conclusion, Elicker demurred, saying instead, ​“While the report concluded that the officer’s actions were allowable, they underscore the importance of additional training and other tools like the Crisis Response Team, to improve outcomes.”

Both also embraced the ​“necessary” use of force standard that the state is moving in the direction of. Dominguez noted that the new use of force state policy doesn’t take effect until this upcoming January, well before the Cole and Marshall incident took place.

POST still needs to provide updated training in line with the police accountability law and the new use of force policy, Dominguez said. ​“Our policy [at the local level] is being updated to follow the model policy” at the state level.

“It will be in effect to coincide with the law and the POST policy on Jan. 1.”

She said that the city’s use of force instructors went through a first round of new POST-mandated use of force training in September. ​“We are currently in the process of training all of the police department in” the new statewide use of force policy, she said. That training will continue into the new year when the city’s local policy is updated, too.

Why does this shift of emphasis from ​“justified” to ​“necessary” use of force matter, in her opinion?

“It matters because we need to make sure that we are following the law,” Dominguez said. It also matters because it’s part of a broader ​“rethinking of use of force” that she said is ​“important as we’re moving forward in policing in general.”

“I think any officer would say they want to use only the amount of force necessary to accomplish the outcome of deescalating the situation and keeping the public safe,” Elicker said. This change in state law and use of force policy helps codify that that ​“necessary” standard as a requirement.

Elicker and Dominguez also pointed to two new sets of trainings that New Haven police officers are slated to receive: one around de-escalation, one around duty to intervene.

The first is through a program called Integrating Communications and Tactics (ICAT). Dominguez said that covers ​“how to respond to a person who is potentially dangerous, but does not have a weapon.” The second is through a program called Active Bystandership for Law Enforcement (ABLE), which per the program’s website seeks to ​“prepare officers to successfully intervene to prevent harm and to create a law enforcement culture that supports peer intervention.”

All of this is part of ​“giving our officers as many tools in the toolbox,” she said, to comply with state law and city policy around when and how officers should use force while on the job.